This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Robert James Smitty,
Filed August 23, 2005
Steele County District Court
File No. K3-01-1199
Mike Hatch, Attorney General,
Thomas R. Ragatz, Susan E. Damon, Assistant Attorneys General, 1800
Douglas L. Ruth, Steele County
Attorney, 303 South Cedar,
Melissa Sheridan, Special Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, Minnesota 55121 (for appellant)
Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of second-degree assault, arguing that (a) the district court abused its discretion by precluding a proposed defense witness from testifying, and (b) the evidence is insufficient to support the conviction. Because the district court’s decision to preclude the defense witness was within the discretion of the district court, and because there is sufficient evidence that appellant acted with intent to cause fear in another of immediate bodily harm, we affirm.
the early afternoon of September 26, 2001, Troy Waldee, apartment manager for
the North Court Apartments in
that evening, Waldee was picking up trash and litter outside the apartments
with his 11-year-old son. According to
Waldee’s testimony, appellant was outside
Waldee next looked at appellant, appellant was holding a knife in his
hands. Appellant flipped open the blade
and stated that he was “going to kill” Waldee.
Appellant was approximately 10–15 feet away from Waldee. Appellant held the knife in front of him,
“swinging it around” for about 15 seconds.
Waldee felt threatened and believed that appellant could stab him. But Waldee agreed at trial that appellant
could not have actually stabbed him from that distance unless appellant threw
the knife. The confrontation ended
without further incident when Waldee told appellant that he could have
appellant arrested for making threats, Waldee began walking toward the office,
and appellant returned to
At trial, appellant denied threatening Waldee with a knife on September 26. Instead, appellant and Sandra Smitty testified that appellant went outside after Meritt observed Waldee writing down Sandra Smitty’s vehicle license number. Appellant asked Waldee why he was “messing” with him. According to appellant, both men were upset, but their conversation never escalated into yelling, and appellant did not brandish a knife or any other weapon. Appellant testified that he possessed a knife that afternoon because he was assisting a friend with some vehicle maintenance.
Sandra Smitty testified that she had met Waldee a couple of weeks before the incident on September 26 at a party hosted by Chris Ramirez. According to Sandra Smitty, Waldee was joking with her at the party while appellant threw his pocket knife at a tree. Appellant saw them talking and became upset. Waldee and appellant began talking and resolved their differences. Waldee hugged appellant, and appellant hugged him back, while holding his knife in his hand. According to appellant’s testimony, Waldee’s wife “went ballistic” when she saw appellant hugging Waldee with his knife in his hand. Sandra Smitty and Waldee’s wife argued for about 5–10 minutes until appellant removed Sandra Smitty and left the party.
Waldee testified that he was in attendance at the Ramirez party but did not have a confrontation with appellant. Waldee testified that he could not recall all of the details of the Ramirez party, but he did remember an argument between Sandra Smitty and his wife.
The jury convicted appellant of both charges. The district court sentenced appellant to 21 months, executed, for the second-degree-assault conviction. This appeal follows.
D E C I S I O N
first challenges the district court’s decision precluding him from calling an
additional witness at trial as a sanction for violating discovery rules. All defense witnesses in a criminal case must
be disclosed pursuant to Minn. R. Crim. P. 9.02. “Discovery rules are ‘based on the proposition
that the ends of justice will best be served by a system of liberal discovery which
gives both parties the maximum possible amount of information with which to
prepare their cases and thereby reduces the possibility of surprise at trial’
and are ‘designed to enhance the search for truth.’” State
v. Patterson, 587 N.W.2d 45, 50 (
imposition of sanctions for violations of discovery rules and orders is a matter
particularly suited to the judgment and discretion of the [district]
court.” Lindsey, 284 N.W.2d at 373.
Although precluding evidence is a severe sanction to be used only as a
last resort, this court will not overturn a district court’s discovery sanction
absent a clear abuse of discretion.
Here, on the second day of trial, after the state had rested and appellant had presented his first defense witness, defense counsel informed the district court that it intended to call Crystal Garbers, a previously undisclosed witness, in appellant’s case in chief. Garbers was present at the Ramirez party, and her testimony would corroborate the version of events offered by appellant and Sandra Smitty. The district court precluded Garbers’s testimony, noting that the court could not find a valid justification for defense counsel’s failure to disclose Garbers. Appellant argues that the district court abused its discretion by precluding Garbers’s testimony because Garbers’s testimony was necessary to demonstrate retribution by Waldee for the confrontation between the parties’ spouses at the Ramirez party.
A. Reasons for failing to disclose
Appellant argues that the first Lindsey factor does not support preclusion because defense counsel did not make a calculated, willful decision to not disclose Garbers as a potential witness but, rather, could not locate Garbers until the trial started. Appellant’s arguments lack merit. Lindsey does not require bad faith on the part of counsel before imposition of discovery sanctions precluding witness testimony. See id. at 373 (“While [the defense counsel’s failure to disclose two witnesses] may not have been motivated by bad faith, neither can it be discerned from the record that there was justification for such disregard of the discovery obligation.”). Moreover, the record reflects that defense counsel was not as diligent as now suggested in locating or disclosing Garbers. Neither appellant nor defense counsel attempted to contact Garbers until the week before appellant’s trial. Additionally, the record reflects that defense counsel waited until a day after conducting his initial witness interview of Garbers to disclose her as a witness. In the interim, the parties selected a jury, the state presented and closed its case, and defense counsel put forth its first witness. While defense counsel may not have acted deliberately, his conduct did not evince a concerted effort to comply with discovery rules. Therefore, the first Lindsey factor supports preclusion.
B. Prejudice to opposing party
Appellant contends that the state was not prejudiced by the nondisclosure because (1) the state was on notice that appellant would present evidence regarding Waldee and appellant’s confrontation at the Ramirez party and, therefore, the state could have interviewed any party guest, and (2) the district court gave the state the opportunity to interview Garbers and prepare a cross-examination. The state argues that it would have been prejudiced by Garbers’s testimony because (1) there was insufficient time to either investigate Garbers’s background or locate and interview other party guests for purposes of rebutting Garbers’s testimony, and (2) the prosecutor had not had the opportunity to question the jurors on voir dire as to their knowledge of or relationship to Garbers.
C. Rectifying the prejudice
argues that the district court could have eliminated whatever prejudice
resulted from Garbers’s testimony by permitting a short continuance to allow
the prosecutor to prepare a cross-examination.
D. Other relevant factors
Appellant contends that the fourth Lindsey factor weighs against preclusion because Garbers’s testimony was crucial to appellant’s defense, and, consequently, preclusion was too severe a sanction. Appellant’s argument is not persuasive considering the cumulative nature of Garbers’s testimony. Moreover, Garbers was not a material witness to the occurrence on September 26 and could not testify to the events underlying appellant’s charged offense. Finally, the district court’s inability to remedy the potential prejudice of Garbers’s testimony was largely the product of defense counsel’s failure to immediately disclose its intent to call Garbers as a witness after their initial interview before trial commenced.
Accordingly, despite the severity of the sanction and the limited potential for prejudice, the Lindsey factors weigh toward preclusion. The district court did not abuse its discretion by precluding Garbers’s testimony.
next challenges his conviction of second-degree assault, arguing that the
evidence failed to demonstrate that he had the requisite intent. When reviewing a challenge to the sufficiency
of the evidence underlying a conviction, this court conducts a painstaking
review of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, supports the verdict. State
v. Wahlberg, 296 N.W.2d 408, 411 (
Appellant was convicted of second-degree
Appellant acknowledges that the state’s evidence demonstrated that appellant threatened Waldee while brandishing a knife, but argues that the evidence of intent is insufficient because appellant did not have the ability to use the knife and carry out his threat immediately. According to Waldee’s testimony, appellant remained between 10–15 feet from Waldee during the confrontation—too far to place Waldee in fear of immediate harm. Therefore, according to appellant, there is no evidence from which the jury could find that appellant intended to cause immediate harm.
There is no
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.